Published 4:00 am, Saturday, November 1, 2003

A momentous legal dispute over abortion landed in a San Francisco federal court Friday when Planned Parenthood sued to block a bill that President Bush plans to sign next Wednesday, the first-ever federal ban on an abortion procedure.

The suit was one of three filed around the nation on behalf of doctors challenging the measure, formally titled the Partial-Birth Abortion Ban Act of 2003. The other suits were filed by the National Abortion Federation in New York and by the Center for Reproductive Rights in Nebraska, where a similar state law was declared unconstitutional by the U.S. Supreme Court in 2000.

The congressional bill, vetoed twice by President Bill Clinton but supported by Bush, would impose prison sentences of up to two years for doctors who perform the outlawed procedure.

Sponsors say the bill narrowly defines a specific, infrequently performed and gruesome type of late-term abortion in which the fetus is partially removed intact from the womb before being killed; opponents, including some major medical groups, say the measure is so vaguely worded that it could apply to virtually all abortions performed after the 12th week of pregnancy.

Latest news videos

"Access to abortions in the second trimester of pregnancy ... would be severely curtailed in the United States" because doctors would fear prosecution and civil damage suits, the Planned Parenthood suit declared.

The great majority of abortions are performed in the first trimester, but a substantial minority occur in the next 12 weeks, often when prenatal tests disclose problems. The 1973 Roe vs. Wade decision, which struck down state anti-abortion laws, barred restrictions on first-trimester abortions and allowed regulation in the second trimester to protect the woman's health.

Laws usually are not challenged until they take effect, but this law was drafted to take effect the day after it was signed. Abortion rights advocates want the courts to intervene immediately and issue a nationwide injunction against enforcement. Court hearings are expected on Wednesday.

"We now have a group of people in Washington, D.C., who are not medical physicians making medical decisions," said Dian Harrison, president of Planned Parenthood Golden Gate, at a news conference Friday in San Francisco announcing the suit.

Another speaker, Viki Wilson, identified only as a resident of the San Joaquin Valley, said she had an abortion of the type forbidden by the act nearly 10 years ago after an ultrasound test showed that the fetal brain had formed outside the skull. The condition would have killed the fetus and threatened her own health, she said.

"While I was struggling with the most wrenching personal decision I have ever made, it never occurred to me to confer with Congress," Wilson said.

But backers of the impending ban describe it as both humane and constitutional.

Bush considers the procedure "abhorrent" and is looking forward to signing the ban, said White House spokesman Ken Lisaius.

The fate of the bill, which was sent to the president's desk after it cleared the Senate on Oct. 21, will depend on whether it differs significantly from the Nebraska law that the Supreme Court struck down by a 5-4 vote in 2000.

The court said the law was invalid for two reasons: its definition of the banned procedure was so loose that doctors would not know what kind of operation might subject them to prosecution; and it did not exempt abortions needed to protect the woman's health, thus imposing an undue burden on the right to abortion.

The congressional bill narrows the definition somewhat, but does not specify a medically recognized category of abortion. Instead, it outlaws any abortion in which either the fetal head, or the trunk below the navel in a breech delivery, is removed from the woman's body before the doctor "kills the partially delivered living fetus."

May block other abortions

The definition "is clear and cannot be applied to other abortion procedures," said Sen. Rick Santorum, R-Pa., a chief Senate sponsor of the bill.

But Planned Parenthood argued in its lawsuit that the description fits not only the relatively rare procedure known as intact dilation and extraction

-- the purported target of the bill -- but events that could arise in the two more common types of second-trimester abortions, dilation and evacuation or induction.

"Performance of any (dilation and evacuation) or induction abortion places doctors at risk of violating the act," the lawsuit said.

The bill allows abortions that are necessary to save a woman's life, but does not contain a health exemption, and instead simply declares that the prohibited procedure is "never necessary to preserve the health of a woman."

Sensenbrenner said the congressional findings should satisfy the courts.

"The Supreme Court has a long history, particularly in the area of civil rights, of deferring to Congress' factual conclusions," he said.

But Planned Parenthood and other opponents argued that such issues are beyond congressional competence and must be left to women and their doctors.

"As a doctor, it is my duty to use the safest procedures I have available once a patient decides to terminate her pregnancy," said Leroy Carhart, the Nebraska physician who was the lead plaintiff in the Supreme Court case and is a plaintiff in one of Friday's cases. "By signing this ban, President Bush will put my patients' health, reproductive abilities and very lives at risk."

Latest from the SFGATE homepage:

Click below for the top news from around the Bay Area and beyond. Sign up for our newsletters to be the first to learn about breaking news and more. Go to 'Sign In' and 'Manage Profile' at the top of the page.